The Roberts Court Only Protects Certain Types of People From First Amendment Compulsion

John Roberts is seen walking, followed by men in suits.
Chief Justice John Roberts is seen leaving the Senate chamber on Feb. 5. Mario Tama/Getty Images

In 1786, when Virginia proposed to assess a tax to support “learned teachers [of] the Christian religion,” Thomas Jefferson sprang into action. “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves,” he wrote, “is sinful and tyrannical.” Jefferson’s Bill for Establishing Religious Freedom, a forerunner of our federal Constitution’s First Amendment, enshrined these words into Virginia law by prohibiting the state from providing subsidies to “any religious worship, place, or ministry whatsoever.”

Fast-forward more than two centuries. On Tuesday, the Supreme Court decided Espinoza v. Montana Department of Revenue, which asked whether states are required to make taxpayer-funded scholarship vouchers available to parents seeking to enroll their children in religious schools. Two years ago, meanwhile, the court decided Janus v. AFSCME, a case about whether states could require public sector employees to pay a fee to reimburse unions for services state law requires them to provide in the workplace. (Full disclosure: I represented the state of Illinois in Janus, arguing in support of these so-called fair-share fees.)

In which case do you think the majority cited Jefferson’s majestic words celebrating the separation of church and state? If you guessed Janus, the one about collective bargaining, and not Espinoza, the one that’s actually about the separation of church and state, come on down and collect your prize: You’ve grasped the Roberts court’s contradictory positions on issues of conscience and coercion.

How did we get here? Start with Janus. In an opinion by Justice Samuel Alito, the 5–4 conservative majority relied on Jefferson’s words—without any acknowledgment of their origins in Virginia’s religious assessment debate—to strike down public sector union fees as a violation of the First Amendment rights of objecting employees. The theory was that by requiring workers to pay for the representation that protects the terms and conditions of their employment, rather than letting them take a free ride, the state was compelling them to speak out in support of the union’s ideological stances. At oral argument, Alito even drew an analogy to Sir Thomas More’s refusal to swear an oath to the Act of Supremacy that made Henry VIII the head of the Church of England. Our response—that workers remained free to speak out against the union and that no one was requiring them to say anything—left Alito and the court’s majority unmoved.

Now turn to this week’s case. When parents tried to use state grant money to pay for tuition at a private Christian school, the Montana Supreme Court struck down the grant program—in its entirety, including for nonreligious schools—citing a Montana constitutional clause prohibiting public aid to sectarian schools. Surely a state is entitled to be suspicious of public aid to religious instruction, much like Jefferson’s Virginia was two centuries ago? That’s what former Chief Justice William Rehnquist held in a 7–2 decision in 2004 upholding the state of Washington’s choice not to subsidize theology students. According to that ruling, the Constitution’s establishment and free exercise clauses have some “play in the joints,” meaning some forms of aid to religion are permitted by the former but not required by the latter. States, in other words, get to choose whether to include religious recipients in their subsidy programs.

Not anymore. Distinguishing Rehnquist’s opinion on flimsy grounds, the court held that by fencing out religious schools, the Montana Supreme Court had impermissibly penalized the free exercise of religion. Never mind that, as Jefferson recognized, the state’s dissenting taxpayers have an interest in not seeing their money used to promote religious instruction. Never mind that the court doesn’t usually treat a failure to subsidize as a coercive penalty—take a look at its decision upholding the Hyde Amendment and you’ll see what I mean. And never mind that, as Justice Ruth Bader Ginsburg pointed out in her dissent, by scrapping the entire program the Montana court left religious school children no worse off than anyone else. The court’s message was clear: From now on, whenever the government launches a public aid program, religious organizations must be eligible. Jefferson’s stirring words warning about just such a scenario appear only in a dissent.

Why was Jefferson’s lesson lost on the court in Espinoza when it drove the result in Janus? It can’t be because the activities of public sector unions lie closer to the heart of the First Amendment than do those of parochial schools; the court would be the first to agree that religion is among that amendment’s core concerns. It can’t be because the union fees are assessed only on the employees who actually benefit from the union’s activities and not from general tax revenues—if anything, that only strengthens the state’s case for assessing them. And it can’t be that religious schools ineligible for aid are more severely coerced than are unions deprived of funding, since the unions are literally required by state law to represent even dissident employees. Chief Justice John Roberts predicated his holding in Espinoza on the idea that Montana was discriminating against religious schools, but the court has long recognized that the government is entitled to treat people differently when it has a good enough reason: here, steering clear of the dangers of government aid to religion. The inescapable conclusion is that what matters most to the court on questions of conscience and coercion is whose ox is being gored—it is happy to allow states to coerce nonreligious taxpayers to support religious schools but won’t let them exact fees from workers who oppose a union’s political posture.

While there are good reasons to avoid subsidizing places of worship, the government doesn’t impermissibly coerce taxpayers when it chooses to do so. And while right-to-work advocates are free to press their case in state legislatures, it shouldn’t be considered unconstitutional to make public sector employees pay a fee for workplace services. But are the court’s conservatives, who say they value judicial restraint, willing to leave these issues to the political process regardless of the cultural or ideological interests at play? Not a prayer.